Royal Decree 203/2021 approving the Regulation on the operation and functioning of the public sector by electronic means

OFFICIAL STATE BULLETIN No. 77 Wednesday, March 31, 2021 Sec. I. Page 36487 I. GENERAL PROVISIONS MINISTRY OF THE PRESIDENCY, RELATIONS WITH THE CORTES AND DEMOCRATIC MEMORY 5032 Royal Decree 203/2021, of March 30, approving the Regulation on the operation and functioning of the public sector by electronic means.

Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, and Law 40/2015, of October 1, on the Legal Regime of the Public Sector, enshrine the right of individuals to interact electronically with public administrations, simplifying access to them, and reinforce the use of information and communications technologies (ICT) in public administrations, both to improve the efficiency of their management and to promote and favor collaboration and cooperation relations between them.

Both laws incorporate the elements that constitute the legal framework for the electronic functioning of Public Administrations, introducing a new paradigm that overcomes the conception that inspired Law 11/2007, of June 22, on electronic access of citizens to Public Services and its partial regulatory development in the General State Administration and its public bodies linked or dependent through Royal Decree 1671/2009, of November 6, according to which electronic processing was merely a form of management of procedures.

In this sense, Law 11/2007, of June 22, responding to the new realities, requirements, and experiences that had become evident, along with the development of the information society and changes in technological and social circumstances, among other factors, recognized the right of citizens to interact electronically with Public Administrations, and not only the possibility as foreseen in Law 30/1992, of November 26, on the Legal Regime of Public Administrations and the Common Administrative Procedure. Law 11/2007, of June 22, even admitted that, by regulatory means, the obligation to communicate with Public Administrations by electronic means could be established when the interested parties were legal persons or groups of natural persons who, due to their economic or technical capacity, professional dedication, or other accredited reasons, had guaranteed access and availability of the necessary technological means.

In this context, Law 39/2015, of October 1, and Law 40/2015, of October 1, have responded to the current demand in the sense that the electronic processing of procedures must constitute the habitual action of Public Administrations, and not merely be a special form of management of them. Consequently, it is foreseen that the relations between Administrations and among their bodies, public bodies, and linked or dependent entities will be carried out through electronic means, and the obligation to interact electronically with the Administration is established for legal persons, entities without legal personality, and, in some cases, for natural persons, without prejudice to the possibility of extending this obligation to other groups by regulatory means.

With these antecedents, it was necessary to develop and specify the legal provisions in order, among other aspects, to facilitate the effective use of technological means by the agents involved, clarifying and specifying at the same time those matters regulated in these laws that allow a margin of regulatory action.

The satisfaction of the interested party in the use of digital services is therefore fundamental to adequately guarantee their rights and the fulfillment of their obligations in their relationship with Public Administrations. Therefore, it is a priority to have digital services that are easy to use and accessible, so that the relationship of the interested party with the Administration through the electronic channel can be easy, intuitive, effective, efficient, and non-discriminatory.

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On the other hand, over the last two decades, successive Governments of Spain have adopted programs for digital advancement aligned with European digital agendas, in all of which the axis of improving electronic Administration has been present. As a result of these programs, Spain has a very favorable position to address the next phase of the digital transformation process of our country and, regarding electronic Administration, is situated among the most advanced countries in the European Union, which has been achieved thanks to the continuous effort of Public Administrations in adapting their electronic services to offer increasingly better services, more adapted to the demands of citizens and businesses, and more efficient. In this effort, Spain's strategy has been based on promoting the foundations that allow complete electronic processing, and on the development of services that can be freely used by all Public Administrations, and which are aligned with European interoperability schemes.

The changes occurring with the maturation of disruptive technologies and their application to information management and the execution of public policies, the new models of relationship of citizens and businesses with Administrations, and the efficient reuse of information are major challenges that, to be successfully faced and to contribute to Digital Transformation, require as a premise having an adequate regulatory framework, both at the statutory and regulatory level, which, guaranteeing legal certainty for all participants, serves the objectives of improving administrative efficiency to make a fully electronic and interconnected Administration effective, increasing the transparency of administrative action and the participation of people in Electronic Administration, and guaranteeing easily usable digital services.

In this sense, the Spain Digital Agenda 2025 contains a specific strategic axis on the Digital Transformation of the Public Sector, whose implementation is concretized in the fulfillment of a set of measures, including the improvement of the regulatory framework of digital Administration and specifically the approval of this royal decree. For its part, the Recovery, Transformation and Resilience Plan (Spain Can) includes among its ten structural reform leverage policies for sustainable and inclusive growth, achieving a modernized Administration through its digitalization, both transversally and in strategic areas, acting as a driver of technological changes. The latest milestone in transformative strategy is the Digitalization Plan of Public Administrations 2021-2025, which represents a decisive leap in improving the effectiveness and efficiency of Public Administration, in transparency and the elimination of administrative barriers through the automation of management, in a greater orientation towards the personalization of services and user experience, acting as a catalyst for the technological innovation of our country from the public sphere.

In short, the Regulation approved by this royal decree pursues the four major objectives mentioned: improving administrative efficiency, increasing transparency and participation, guaranteeing easily usable digital services, and improving legal certainty.

First, it seeks to improve administrative efficiency to make a fully electronic and interconnected Administration effective. Thus, the use of electronic means established in Laws 39/2015, of October 1, and 40/2015, of October 1, is developed and specified to guarantee, on the one hand, that administrative procedures are processed electronically by the Administration, and on the other, that citizens interact with it through these means in cases where it is established as mandatory or those they choose voluntarily.

A second objective consists of increasing the transparency of administrative action and the participation of people in Electronic Administration. Thus, the functioning of the General Electronic Access Point (PAGe) and the Citizen's File in the State Public Sector is developed. The content and minimum services to be provided by electronic offices and associated electronic offices and the functioning of electronic registers are regulated.

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Thirdly, the Regulation seeks to guarantee easily usable digital services so that the relationship of the interested party with the Administration can be easy, intuitive, and effective when using the electronic channel.

Finally, it seeks to improve legal certainty. Thus, the overlap of different legal regimes is eliminated, the regulation that remained in force from Royal Decree 1671/2009, of November 6, is adapted and integrated into the Regulation approved by this royal decree, proceeding, therefore, to its definitive repeal, and the regulation is adapted to the new framework of Law 39/2015, of October 1, and Law 40/2015, of October 1.

The royal decree consists of a single article approving the Regulation on the operation and functioning of the Public Sector by electronic means, two transitional provisions, one repealing provision, and five final provisions.

Among the five final provisions, two modify current regulations and the remaining three regulate the competence title, the regulatory authorization for the development and execution of the royal decree, and the entry into force. Regarding the modifying provisions, these affect Royal Decree 4/2010, of January 8, regulating the National Interoperability Scheme in the field of Electronic Administration, and Royal Decree 931/2017, of October 27, regulating the Normative Impact Analysis Report. Thus, first, with regard to Royal Decree 4/2010, of January 8, its article 29 establishes that the National Interoperability Scheme will be developed and perfected over time in parallel with the progress of electronic Administration services, technological evolution, and as the infrastructures supporting it consolidate. Therefore, the rapid evolution of technologies, the experience derived from the application of the National Interoperability Scheme since its approval 10 years ago, the provisions of Law 39/2015, of October 1, and Law 40/2015, of October 1, regarding interoperability between Public Administrations and their bodies, public bodies, and entities of public law linked or dependent, plus the need to adapt to what is provided in Regulation (EU) No 1025/2012 of the European Parliament and of the Council, of October 25, 2012, on European standardization, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council, determine the need to modify certain aspects of its current wording. Consequently, articles 9, 11, 14, 16, 17, and 18, as well as the first additional provision and the glossary annex, are modified, while article 19 and the third and fourth additional provisions are suppressed.

Secondly, Royal Decree 931/2017, of October 27, is modified to incorporate into the Normative Impact Analysis Report the analysis of the incidence on expenses in means or services of digital Administration within the budgetary impact of projects and, on the other hand, to include within the section of "Other impacts" that which will have for the persons to whom the norm is addressed and for the organization and functioning of the Administration the development or use of the means and services of digital Administration that entails the application of the projected regulation.

For its part, the Regulation on the operation and functioning of the Public Sector by electronic means approved by the royal decree consists of 65 articles distributed in four titles, ten additional provisions, and an annex of definitions.

The preliminary title of the Regulation comprises general provisions regulating the object and scope of application of the norm (which refers to the scope of article 2 of both Law 39/2015, of October 1, and Law 40/2015, of October 1) and the general principles that the public sector must respect in its actions and electronic relations. Among these principles are the principle of technological neutrality and adaptability to the progress of technologies and electronic communication systems, to guarantee both independence in the choice of technological alternatives necessary to interact with Public Administrations by interested parties and by the public sector itself, as well as the freedom to develop and implement technological advances in a free market environment; the principle of accessibility, to promote that the design of electronic services guarantees equality and non-discrimination in access for users, particularly for disabled persons and older persons; the principle of ease of use, which determines that the design of electronic services is user-centered to minimize the degree of technological knowledge necessary for the use of the service; the principle of interoperability, understood as the capacity of information systems and, therefore, of the procedures they support, to share data and enable the exchange of information between them; the principle of proportionality, so that security and guarantee measures required are adequate to the nature and circumstances of different electronic procedures and actions; and finally, the principle of personalization and proactivity, understood as the capacity of Public Administrations to provide pre-filled services and anticipate possible needs of users, starting from the acquired knowledge of the end user of the service.

Likewise, the preliminary title regulates the right and obligation to interact electronically with Public Administrations, in application of article 14 of Law 39/2015, of October 1, and the channels through which Public Administrations will provide the necessary assistance to facilitate the access of interested parties to the electronic services provided within their scope.

Title I regulates internet portals, the PAGe, electronic offices and associated electronic offices (characteristics, creation and suppression, content and services, and responsibility) and the personalized area through which each interested party can access their information, track administrative procedures affecting them, and receive notifications and communications within the scope of the competent Public Administration, which in the state scope is called the "Citizen's File".

Title II is subdivided into three chapters and regulates the administrative procedure by electronic means. Thus, Chapter I, on "General Provisions," addresses automated administrative processing and the regime for corrections. Chapter II regulates the identification and authentication of Public Administrations and interested parties and is subdivided into four Sections: the 1st addresses common provisions to identification and authentication and interoperability conditions (including the platform for verification of electronic certificates and other identification systems); the 2nd regulates the "Electronic Identification of Public Administrations and authentication of the exercise of their competence," which comprises the identification of electronic offices and associated offices, identification based on electronic seal using a qualified electronic certificate, electronic signature systems for automated administrative action, identification and signature of personnel serving Public Administrations (including public employee certificates with professional identification number), and authentication and identification of issuing and receiving Administrations in data exchange through closed communication environments. Section 3rd develops the regulation of identification and signature of interested parties, and finally, Section 4th regulates the accreditation of representation of interested parties (regulating, among other aspects, the electronic register of powers of attorney).

Title II closes with Chapter III, which in its two sections regulates Electronic Registers, electronic notifications, and other electronic communication acts. Thus, Section 1st regulates electronic registers (among other aspects, the General Electronic Register of each Administration and the presentation and treatment of documents in register or the competencies of the Assistance Offices in matters of registers of the General State Administration) and Section 2nd regulates administrative communications to interested parties by electronic means (electronic communication acts to interested parties other than notifications or publications) and electronic notifications (including general rules for the practice of electronic notifications, the notice of availability of the notification, notification through the Unique Enabling Electronic Address (DEHu), and electronic notification in electronic office or associated electronic office).

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Title III regulates the electronic file and is divided into two chapters. Chapter I regulates the electronic administrative document and the requirements and issuance of authentic copies of public administrative documents or private documents, which are originals or authentic copies of originals; the formation of the electronic administrative file and the exercise of access to it and obtaining copies and the destruction of documents. Chapter II regulates the conservation of electronic documents and the definition of the unique electronic archive.

Finally, Title IV is divided into two chapters and regulates the relations and collaboration between Public Administrations for the electronic functioning of the public sector. Thus, Chapter I addresses collaboration between Public Administrations for administrative action by electronic means and includes mandatory inter-administrative and inter-organ relations by electronic means in the exercise of their competencies, communications in the General State Administration, the possibility of adherence to electronic offices and associated electronic offices, and the regulation of the Register Interconnection System (SIR), through which interconnections between Registers of Public Administrations must be carried out, which must be interoperable with each other and, in the case of the General State Administration, which represents a novelty, also with case management systems.

Chapter I of Title IV also regulates the data transmissions referred to in article 155 of Law 40/2015 of October 1, data intermediation platforms (with special mention of the state-level platform), the electronic transmission of administrative files in the scope of Public Administrations through making available, via an interoperability node, the electronic address or locator that gives access to the complete electronic file, and finally, the provisions for the automatic exchange of data or documents at the European level provided for in Regulation (EU) No 2018/1724 of the European Parliament and of the Council, of October 2, 2018, on the creation of a single digital gateway to access information, procedures and assistance and problem resolution services and amending Regulation (EU) No 1024/2012.

Title IV concludes with Chapter II, which regulates the transfer and sharing of technologies between Public Administrations, addressing, on the one hand, the reuse of systems and applications of Public Administrations and, on the other hand, adherence to the platforms, registers, or electronic services of the General State Administration.

The final part of the Regulation consists of ten additional provisions and an annex of definitions. The first regulate the mandatory use of electronic means in selection processes for access to public employment in the scope of the General State Administration; the promotion of training of personnel serving the General State Administration to guarantee the right of interested parties to be assisted in the use of electronic means in their relations with the Public Administration; the creation of the interoperability node for the electronic identification of the Kingdom of Spain for the mutual recognition of electronic identities between Member States of the European Union; the adherence of private law entities linked or dependent on the General State Administration, in the exercise of administrative powers, to electronic offices and associated electronic offices and the applicable electronic signature and notification system; the adherence of constitutional bodies to the use of platforms, registers, or electronic services of the General State Administration; the situation of electronic offices and sub-electronic offices in the state scope existing at the entry into force of this royal decree; the interoperability of electronic registers of powers of attorney; supplementary application in the Civil Register; the authorization of the identification systems provided for in article 9.2.c) and of the signature systems provided for in article 10.2.c) of Law 39/2015, of October 1, and finally, the specialities by reason of subject matter.

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